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Cohabitation Agreements1
 Family Law & Practice, 16.2.4
 Cohabitation Agreements are contracts which set out arrangements for how an unmarried couple are
to live together, and rights on the breakdown of the relationship.

Issues to be Covered
 The main issues a Cohabitation Agreement should cover are:
Ownership  Will the property be jointly owned?
of Property  If so, how? Will it be owned by the couple as joint tenants, or tenants in common?
 If a tenancy in common, it may be sensible for the agreement to specify the
percentages of the proceeds of sale each partner will receive.
Joint  Each owner jointly owns the whole of the asset, rather than a distinct
Tenants fractional share.
 Each partner will be jointly entitled to the proceeds of sale,
equally.
 Is this fair? Particularly if, for instance, one partner contributes
significantly more to the purchase price?

 When a joint tenant dies, the home automatically passes to the

remaining joint tenant(s) by way of survivorship.
 By contrast, where property is held as a tenancy in common,
each partner’s share will pass by will. If there is no will, the
partner’s share will not automatically pass to their partner
whilst they are unmarried.
 A joint tenancy can, therefore, help ensure the security of the
provision of a home for any children.
Tenants in  Each owner owns a distinct and separate share in the property.
Common  If there is no express declaration of trust, the extent of each
party’s share will be decided in accordance with the principles in
Stack v Dowden [2007] UKHL 17 which may produce
considerable uncertainty and unfairness.
 See notes on Marriage and Cohabitation Compared.

 On the death of one of the tenants, their share passes to in

accordance with their will, or intestacy.
 Where one spouse dies intestate, their share will not
automatically pass to their partner whilst they are unmarried.
Division of  Household expenses?
finances  Consider all potential liabilities (e.g. mortgage, bills). Is the split fair?
 Contents of the home?
 Joint accounts?
 Pensions?
 It may be sensible for the agreement to include a provision as to pensions.
 The Court does not have the power to make pension orders in the same way as
it does in matrimonial proceedings in the event that a cohabiting couple split up.
 What happens when one of the parties dies?

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Workshop 6, Prep Task
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Children  Who will be responsible for maintenance?
 What will the children’s surname be?
 What are the parties’ intentions with regards parental responsibility?

Validity
 Cohabitation Agreements are, in principle, permissible under English Law (Sutton v Mischon De Reya
and Gower & Co [2003] EWHC 3166 (Ch)).
 However, their validity is governed by contract. The agreement must therefore:
Be Legal  Must avoid any implication that cohabitation is an obligation of the
agreement; this risks the agreement being illegal on grounds of public policy.
 This implication is more likely to be successfully avoided if the agreement is
entered into after the couple start living together.
Avoid undue  This may arise if the agreement is unduly favourable to one party and that
influence party cannot show that it was entered into freely or following independent
advice (Zamet and Others v Hyman and Another [1961] 3 All ER 933).
 Where parties have obtained independent advice, they may wish to include a
recital in the agreement to confirm this.
 It is also good practice for the parties to provide full and frank disclosure of
their finances in a schedule to the agreement.
Show that the  In domestic circumstances there is a presumption that the parties did not
parties intended intend to enter into a contract, however this can be rebutted.
to create legal  The agreement should NOT include matters that are too trivial, e.g., division
relations. of housework, because this may make it more likely that a Court will find that
they did not intend to create legal relations.
Contain
sufficiently certain
obligations
Will normally need  This avoids any risk that the agreement is void for failure of consideration
to be a deed. (deeds do not require consideration in the same way as a normal contract).

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